Leech v. Veterans' Bonus Division Appeals Board

Peters, J.

(concurring). The majority opinion concludes that the residence requirement contained in § 27-140a is not a requirement of the type that has been held to have some impact on the right of interstate travel. I do not agree.

The eligibility criteria contained in § 27-140a discriminate between old residents of Connecticut and new residents, between those who were domiciled here more than one year before they entered upon military service and those who were domiciled here *322less than one year at the time of entry. The issue is not the validity of "bona fide residence requirements, whose constitutionality the Supreme Court of the United States has repeatedly upheld. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 342 n.13, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). Rather the issue is the validity of coupling residence requirements with time-bound constraints that result in making some residents more equal than others. I do not believe that § 27-140a is immunized from constitutional scrutiny simply because its one year period is not a waiting period but is an outright prohibition that imposes an incurable, irremediable obstacle to the rights of the applicant. An outright prohibition has, to my mind, as much of a potential for a deterrent effect on travel as a temporary prohibition that time will cure. See Memorial Hospital v. Maricopa County, supra, 257-58; Dunn v. Blumstein, supra, 338-42; Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). It is analogous to the permanent irrebuttable presumption of nonresidence that was struck down as violative of the fourteenth amendment in Carrington v. Rash, 380 U.S. 89, 96, 85 S. Ct. 775,13 L. Ed. 2d 675 (1965).

Nonetheless, I do not believe that this applicant can satisfy the second branch of the right-to-travel cases. A statute will be subject to strict constitutional scrutiny only if its eligibility requirements not only deter migration but do so by imposing what can be characterized as “penalties upon the exercise of the constitutional right of interstate travel.” Shapiro v. Thompson, supra, 638 n.21; Memorial Hospital v. Maricopa County, supra, 258-61; Dunn v. Blumstein, supra, 335. The right to receive a *323veteran’s bonus is readily distinguishable from such fundamental governmental privileges or benefits as the right to vote, to welfare, or to medical assistance. Less essential forms of governmental entitlements, such as the right to reduced tuition at state universities ; Vlandis v. Kline, 412 U.S. 441, 452-53 n.9, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973); require less by way of constitutional justification. Because there is no fundamental right to a bonus, the constitutionality of § 27-140a must be tested for its rational basis, rather than for its compelling state interest.

The question of the constitutionality of § 27-140a must therefore be resolved by determining whether the statute’s domiciliary requirement bears a rational relationship to a legitimate state purpose. I find this determination to be an extremely close question. I am profoundly troubled that the legislature would reward a former domiciliary, who left the state immediately upon entry into military service, and fail to reward a person domiciled here upon the date of his enlistment who subsequently continued to maintain his residence in this state. But see Lyman v. Adorno, 133 Conn. 511, 52 A.2d 702 (1947). As Justice Bogdanski notes, however, this applicant had no connection whatsoever with this state at the time of his entry into West Point, and, as to him, there is no failure of rational relationship.

I therefore concur in the result.